KEBET PACKAGING SERVICES PTY LTD ACN 005 063 883 ABN 91 005 063 883
TERMS AND CONDITIONS OF SALE
Quotations may be withdrawn or varied at any time prior to acceptance of order. KEBET reserves the right to amend prices at any time for the undelivered portion of any order.
Any quotation made by KEBET is not an offer to sell and no order given in pursuance of any quotation shall bind KEBET until accepted by it in writing. These terms and conditions shall be deemed to be incorporated in any agreement between KEBET and the Purchaser. Any terms and conditions contained in any order offer acceptance or invoice of the Purchaser and all representations statements terms conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
(a) Any date quoted for delivery is an estimate only and KEBET shall not be liable to the Purchaser for any loss or damage howsoever arising for failure to deliver on or before the quoted date. The Purchaser shall accept and pay for items if and when tendered notwithstanding any failure by KEBET to deliver by the quoted date.
(b) KEBET reserves the right to deliver by instalments. If delivery is made by instalments the Purchaser shall not be entitled:-
(i) to terminate or cancel the contract; or
(ii) to any claim for loss or damages howsoever arising;
for failure by KEBET to deliver an instalment on or before the quoted date.
(c) The Purchaser shall inspect the items immediately on their delivery and shall, within 48 hours, give written notice to KEBET of any matter or thing by reason whereof the Purchaser may allege that the items are not in accordance with the contract.
Every endeavour will be made to deliver the quantity ordered but, owing to the difficulties or producing exact quantities, the acceptance of orders is conditional upon a margin of 10% being allowed for overs and shortages. Any such variation shall be charged for or deducted pro rata.
Any order may only be cancelled by mutual agreement and in the event of such cancellation the Purchaser undertakes to reimburse and indemnify KEBET for any costs expenses or charges incurred by KEBET in preparation for and in the execution of an order.
Description & Specifications
(a) Whilst every effort is made to ensure their accuracy the descriptions illustration sand material contained in any price list leaflets or other descriptive matter provide by or on behalf of KEBET represent the general nature of the items described therein and shall not form a part of any order or agreement or amount to any representation or warranty. KEBET reserves the right to modify the design of items without notice.
(b) KEBET does not warrant or guarantee and it shall not be term of any agreement between KEBET and the Purchaser that any items manufactured constructed or supplied by KEBET which are based in whole or in part upon any designs drawings or specifications supplied to KEBET by or on behalf of the Purchaser will achieve any standard or performance of any capacity whatsoever.
Limitation of Liability
(a) To the extent permitted by relevant law representations promises statements warranties and conditions regarding any goods or services supplied by or on behalf of KEBET which without limiting the generality of the foregoing shall include conditions or warranties as to quality or fitness for any particular purposes are expressly excluded. KEBET shall not be liable for any loss or damage whatsoever and howsoever arising whether direct, indirect or consequential or in respect of any claim whenever and however made for any loss damage deterioration deficiency or other fault or harm in the items manufactured, work executed or services provided by or on behalf of or in any arrangement with KEBET its servants or agents.
(b) The Purchaser acknowledges and agrees that the purchase price for the Products which KEBET is charging hereunder does not include any consideration for assumption by KEBET of the risk of Purchaser’s consequential or incidental damages which may arise in connection with the Purchaser’s use and/or resale of the items the subject hereof and it is expressly agreed that shall not be responsible for any conditions or terms of sale other than those herein contained nor for any representations specifications or promises of any kind or description other than those expressly contained in this Agreement and any express or implied condition term statement or warranty statutory or otherwise not stated herein is to the maximum extent permitted by law hereby excluded. Accordingly, the Purchaser agrees that KEBET shall not be responsible to the Purchaser for any direct or indirect loss of profit incidental special or consequential damages arising out of the use or resale of the items even if KEBET has been informed of the possibility of such damages. It is expressly agreed that subject to any statutory provision to the contrary KEBET’s liability in connection with the items or this Agreement shall not exceed amounts paid to KEBET by the Purchaser hereunder. These limitations apply to all causes of action in the aggregate including without limitation breach of contract breach of warranty KEBET’s negligence strict liability product and to the extent that same does not conflict with relevant law KEBET shall not be liable in any circumstances for any:-
(i) defects or damage caused in whole or in part by misuse abuse or neglect;
(ii) transport installation removal labour or other costs;
(iii) technical advice or assistance given or tendered by it to the Purchaser whether or not in connection with the manufacture construction of supply of goods for or to the Purchaser.
Containers including pallets skips bins and stillages in or on which items are delivered whether or not a deposit charge is made in respect of same shall remain the property of KEBET. On the containers’ return in good order and condition any deposit paid will be returned to the Purchaser. The deposit for the containers which the Purchaser returns otherwise than in good order and condition shall only e refunded in part having regard to their actual condition. Containers will be deemed to be still in the Purchaser’s hands until received into KEBET’s stores.
Insolvency & Default
This Agreement may be terminated by KEBET at any time after the occurrence of a Credit Event with respect to the Purchaser. A Credit Event shall be deemed to have occurred with respect to the Purchaser if:
(a) the Purchaser shall:
(i) generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally; or
(ii) make a general assignment for the benefit of creditors; or
(iii) institute any proceeding seeking to adjudicate it a bankrupt or insolvent or seeking liquidation winding up reorganisation arrangement adjustment protection relief or composition of it or its debts under any law relating to bankruptcy insolvency or reorganisation or relief of debtors or seeking the entry of an order for relief or the appointment of a receiver trustee or other similar official for it or for any substantial part or its property; or
(b) there shall be commenced against such party any proceeding of the type described in clause (a) (i) (ii) or (iii) hereof which:
(i) results in an order for relief; or
(ii) shall not have been vacated discharged or stayed or bonded pending appeal for a period of thirty (30) days from the entry thereof.
Effect of Termination
From and after any cancellation pursuant to clause 9:-
(a) The Purchaser may continue to market the Products in its possession for which it has paid in its customary manner having reference to the terms and conditions of this Agreement and in the ordinary course of business; and
(b) Payment and indemnification obligations arising prior to termination will remain in force; and
(c) The due date for all invoices for the items shall automatically be accelerated so that they shall immediately become due and payable on the effective date of termination even if longer terms had been provided previously. Termination of htis Agreement shall automatically cancel all unshipped orders.
Title to goods shall not pass to the Purchaser until payment in full of the purchase price. At all times before title in the goods passes to the Purchaser, the Purchaser shall store the goods so that they are clearly identified as the property of KEBET. Upon default by the Purchaser, KEBET shall be entitled to retake possession of the goods and resell them and for that purpose may enter the Purchaser’s premises and remove the goods.
Unless otherwise agreed in writing all items shall be at the Purchaser’s risk upon delivery to the Purchaser his carrier or agent.
Unless stated to the contrary on the face of this document the whole of the purchase price is due immediately upon delivery of the items to the Purchaser or the Purchaser’s agent and is payable on demand or if no demand is made within thirty (3) days after the end of the month in which the items are so delivered. KEBET reserves the right to charge interest at the rate set from time to time pursuant to section 2 of the Penalties Interest Rates Act 1983 (Vic) per annum calculated daily on any overdue amounts.
Unless otherwise expressly agreed in writing the price of the items shall be that price charged by KEBET at the date of delivery including the amount which KEBET is required to pay on account of any excise or sales taxes or any other taxes or charges which may be established or levied by any governmental authority upon the items or any part thereof or the manufacture use sale of or delivery thereof.
Neither party shall be liable or deemed in default hereunder for any delay or failure in performance resulting directly or indirectly from acts of God acts of any government war or natural emergency accidents fires strikes or labour disputes provided that the delaying or non-performing party had taken all commercially reasonable actions that are available to avoid such delay or non-performance; provided however that if such delays continue for one hundred and twenty (120) days then the other party shall have the option exercisable by written notice to the party affected by such force majeure event to cancel all or any portion of orders placed hereunder and to terminate this Agreement.
Failure by KEBET to insist upon strict performance of any term or condition hereof shall not be deemed a waiver thereof or of any rights KEBET may have and shall not and nor shall any express waiver be deemed to be a waiver of any subsequent breach of any term of condition.
This contract shall be governed by construed and enforced in accordance with the laws of Victoria.
If any provision of this contract is held by a court of competent jurisdiction to be contrary to law the remaining provisions hereof shall remain in full force and effect.